Rogan and Hadley (Child support) - [2023] AATA 4294

Rogan and Hadley (Child support) [2023] AATA 4294 (25 September 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC025975
APPLICANT:  Mr Rogan
OTHER PARTIES:  Child Support Registrar
Ms Hadley

TRIBUNAL:Senior Member S Trotter
DECISION DATE: 25 September 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to the children are 15% to Mr Rogan and 85% to Ms Hadley effective from 11 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – care from start of administrative assessment – care the parents have had and were likely to have for remainder of care period – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

As relevant to this application, Mr Rogan and Ms Hadley are parties to a child support case registered with Services Australia – Child Support (Child Support) from 11 January 2023 in relation to financial support to be provided for [Child 1] (born 2018) and [Child 2] (born 2020) (the children). The application concerns a single decision of Child Support about the percentage of care determinations for each parent for the children utilised in calculation of the child support liability from the commencement of the case on 11 January 2023.
On 18 January 2023, Child Support decided to accept an application for assessment of child support by Ms Hadley and determined percentages of care of the children of 88% for Ms Hadley and 12% for Mr Rogan from 22 December 2021, effective from the assessment start date of 11 January 2023.

On 16 February 2023, Mr Rogan objected to this decision and, on 4 April 2023, a Child Support objections officer disallowed the objection.

On 19 April 2023, Mr Rogan lodged an application with the Tribunal seeking an independent review of Child Support’s decision, stating as follows:
The Applicant and other parent have come to an agreement as to care. The Applicant was unable to submit the supporting evidence to CSA in time and the decision it made does not reflect the parental agreement.

The hearing of the application before the Tribunal was held on 23 August 2023. Mr Rogan and Ms Hadley both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.
The Tribunal adjourned following the hearing to allow Mr Rogan to provide further documents. Copies of those documents were provided to Ms Hadley with opportunity given for her to respond or comment upon the documents by close of business on Friday 22 September 2023. No response or comment, or a request for further time in which to do so, was received from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] AATA 4294
Decision Date: 25 September 2023

CaseChat Overview and Summary

This matter concerned an appeal by the father, Mr Rogan, against a decision of the Child Support Registrar regarding the percentage of care for the parties' child. The dispute centred on the Registrar's assessment of the father's care entitlement, which the father contended was incorrectly calculated. The appeal was heard by S Trotter SM in the Magistrates Court.

The primary legal issue before the Court was to determine the correct percentage of care for the child as between the parents, for the purposes of a child support assessment. This required the Court to consider the care arrangements that had occurred from the commencement of the administrative assessment and the care arrangements that were likely to continue for the remainder of the relevant care period.

The Court's reasoning involved a careful examination of the evidence presented regarding the actual care provided by each parent and the projected future care arrangements. The Court applied the principles of the *Child Support (Registration and Collection) Act 1988* concerning the calculation of care percentages, which requires consideration of both past and prospective care. The Court found that the Registrar's decision did not adequately account for the father's actual and likely future care.

Consequently, the Court set aside the decision under review and substituted its own decision, finding that the father was entitled to a greater percentage of care than had been initially assessed by the Registrar.

Orders